Wek Drilling Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1969

174 N.L.R.B. 607 (N.L.R.B. 1969)

WEK DRILLING CO. 607
Wek Drilling Co., Inc . and Local 826 , International
Union of Operating Engineers, AFL-CIO. Case
28-CA- 1768
February 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a charge filed by Local 826, International
Union of Operating Engineers, AFL-CIO, herein
called the Union, the General Counsel of the
National Labor Relations Board by the Regional
Director for Region 28, issued a complaint, dated
October 10, 1968,1 against Wek Drilling Co., Inc.,
herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1), and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before a Trial Examiner were duly served upon the
Respondent.
With respect to the unfair labor practices, the
complaint alleges , in substance, that on or about
March 5, the Union was duly certified as the
exclusive bargaining representative of the
Respondent's employees in the unit found
appropriate2 and that since on or about October 1,
the Respondent has refused and is refusing to
recognize or bargain with the Union as such
exclusive bargaining representative, although the
Union had requested and is requesting it to do so.
On October 18, the Respondent filed its answer,
admitting in part, and denying in part, the
allegations of the complaint, and asserting by way
of affirmative defense that the certification is invalid
on the ground that the election was conducted under
the special voter eligibility rule set forth by the
National Labor Relations Board in Hondo Drilling
Company N.S.L., 164 NLRB No. 67, and that that
special rule has no applicability to the Respondent.
On October 23, the General Counsel filed with the
Board a Motion for Summary Judgment,
contending that the pleadings, considered together
with the official Board record in the underlying
representation proceeding, Case 28-RC-1692, raised
no issues requiring a hearing, that Respondent's
defense set forth in its answer raises no litigable
questions of fact, and that as a matter of law, the
Respondent has no valid defense to the complaint.
Thereafter, on October 28, the Board issued an
Order Transferring Proceeding to the Board and
Notice to Show Cause. On November 11, the
Respondent filed a Response to Notice to Show
Cause, contending that, in consenting to an election
'Unless otherwise noted , all dates are in 1968
'Decision and Certification of Representative in Case 28-RC-1692
(unpublished)
to be held under the eligibility rule described in
Hondo Drilling Company N.S L., it had insisted
upon the inclusion of a clause, which it alleges
provided for a hearing in the event that the
Respondent lost the election to afford the
Respondent an opportunity "to contest and litigate
through objections to the election, Section 8(a)(5)
procedures, or otherwise, the validity of or
applicability of the particular voter eligibility rule
followed by the Regional Director for the employees
of [Respondent] in this election pursuant to [Hondo
Drilling Company N.S.L., supra]." At this time the
Respondent alleges certain facts concerning the
applicability of the Hondo rule to its operation,
which it says, in effect, that it would prove at a
hearing. It maintains therefore that substantial and
material issues of fact are raised which should
motivate the Board to order a hearing.
On December- 6, the General Counsel filed a
Counterstatement in Support of General Counsel's
Motion for Summary Judgment, arguing that, as all
of the contentions urged by the Respondent have
been litigated before the Board and finally ruled on
adversely to the Respondent by the Board in the
representation case, and as the Respondent does not
allege or contend that it has evidence previously
unknown or unavailable to it, and as the
Respondent concedes that it has refused to meet, and
bargain with the Union from on or about October 1,
and at all times thereafter, there is no matter
requiring a hearing and summary judgment is
therefore appropriate. In addition, the General
Counsel contends that, as the Respondent
recognized the Union as the duly certified
bargaining representative of the employees and
bargained with the Union pursuant thereto for
approximately 6 months prior to its repudiation of
the certification on or about October 1, the
Respondent has waived any right to now question
the Union's certification.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
RULINGS ON THE MOTION FOR SUMMARY
JUDGMENT
The Respondent's contention that it is entitled to
an evidentiary hearing on the applicability of the
Hondo rule to its operation is without merit for the
following reasons:
Between October 2 and October 17, 1967,
pursuant to a Stipulation for Certification upon
Consent Election in Case 28-RC-1692, executed by
the parties and approved by the Regional Director
on September 21, 1967, a majority of the employees
of the Respondent in the appropriate unit, by secret
ballot, designated the Union as its representative for
the purpose of collective bargaining. Thereafter,
174 NLRB No. 92
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to the aforementioned clause, the
Respondent claimed by way of an objection to the
election that the Hondo voter eligibility rule was
inapplicable to the circumstances of its particular
operation. The Regional Director then requested
from the Respondent evidence in support of its
objection. The Respondent answered that it did not
intend to 'supply any but, rather, it would litigate at
a formal hearing the applicability of the Hondo rule
to its operation by showing it had put into effect
certain employment incentive programs designed to
encourage employees to accept and retain regular,
permanent employment. The Respondent did not
specify what these programs were or how and if, in
fact, they affected tenure of employment. Since the
Respondent did not produce evidence in support of
its objection, the Regional Director recommended
that the objection be overruled for failure to furnish
relevant and material evidence in support thereof.
The Board adopted the Regional Director's findings
and recommendations and issued a Decision and
Certification of Representative on March 5.
It is established Board policy, in the absence of
newly discovered or previously unavailable evidence
or special circumstances, not to permit litigation
before a Trial Examiner in an unfair labor practice
case, of issues which were or could have been
litigated in aprior related representation proceeding.'
In its Response to Notice to Show Cause, the
Respondent offers no newly discovered or previously
unavailable evidence and does not allege the
existence of special circumstances. The alleged facts
in the Respondent's offer of proof, upon which the
Respondent now bases its contention that the Hondo
rule is inapplicable to it, were available at the
representation stage and yet the Respondent refused
to furnish them to the Regional Director. Inasmuch
as the Respondent has had the opportunity to
litigate this issue in the representation case, and as
the Respondent does not offer to adduce at a
hearing any newly discovered or previously
unavailable evidence, nor does it allege that any
special circumstances exist herein which would
require the Board to reexamine the decision made in
the representation proceeding, we find that the
Respondent has not raised any issue which is
properly triable in this unfair labor practice
proceeding.
Moreover, the Respondent entered into
negotiations with the Union without any express
reservation, and thereafter bargained with the Union
for approximately 6 months before it questioned the
validity of the certification on or about October 1.
By its conduct in bargaining during the period from
on or about March 24, to on or about October 1,
Respondent has waived any right to now question
the Union's certification by refusing to bargain.
'See Pittsburgh Plate Glass Co. v . N.L R B. 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Series 8, as amended, Section
102.67(8 and 102 69(c).
All material issues Itime y raised having been
either decided by the Board, waived by the
Respondent or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's Motion for Summary Judgment is
granted. On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent is and at all times material
herein has been, a New Mexico corporation having
a principal place of business in Roswell, New
Mexico, where it is engaged in the drilling of oil
wells for oil producing companies. In the course and
conduct of its business operations, the Respondent,
during the preceding 12-month period, a
representative period, performed services valued in
excess of $50,000 for out-of-State customers, which
customers annually ship products directly in
interstate commerce valued in excess of $50,000 and
annually receive in excess of $50,000 of products
directly from out-of-state suppliers.
The Respondent admits, and we find, that it is,
and has been at all times material herein, an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 826, International Union of Operating
Engineers , AFL-CIO is a labor organization within
the meaning of Section 2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following
employees have constituted and now constitute a
unit appropriate for purposes of collective
bargaining within the meaning of the Act;
All employees, excluding tool pushers, drillers,
office clerical employees, technical employees,
guards, professional employees and supervisors as
defined in the Act.
2. The certification
On or about October 17, 1967, a majority of the
employees of the Respondent in said unit, voting in
a secret election conducted under the supervision of
the Regional Director for Region 28, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent, and on or
about March 5, the Board certified the Union as the
WEK DRILLING CO.
exclusive collective-bargaining representative of the
employees in said unit, and the Union continues to
be such representative.
B. The Request To Bargain , the Bargaining,
and the Respondent 's Refusal
On or about March 24, the Union requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. On July
1, the Respondent and the Union met to bargain
upon a collective-bargaining agreement covering the
employees in the aforesaid unit. The parties met
again in bargaining sessions on September 24 and
25. Commencing on or about October 1, the
Respondent refused, and continues to refuse, to
bargain collectively with the Union as the exclusive
collective-bargaining representative of the employees
in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the
appropriate unit described above; that the Union at
all times since March 24 has been and now is the
exclusive bargaining representative of all the
employees in the aforesaid unit within the meaning
of Section 9(a) of the Act; and that the Respondent
has since October 1, refused to bargain collectively
with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit. By such refusal, the Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
609
CONCLUSIONS OF LAW
1. Wek Drilling Co., Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 826, International Union of Operating
Engineers, AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees, excluding tool pushers, drillers,
office clerical employees, technical employees,
guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. On March 5, 1968, and at all times thereafter,
the above-named labor organization has been and is
the certified and exclusive representative of all
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about October 1,1968, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all its employees in the
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
close, intimate, and substantial relation to trade,
traffic and commerce among the several States, and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Upon resumption of bargaining and for 6
months thereafter the Union shall be regarded as if
the initial year of the certification had not yet
expired. "
B. Wek Drilling Co., Inc., Roswell, New Mexico,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 826,
International Union of Operating Engineers,
'The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar Jac Poultry Co , Inc , 136
NLRB 785; Commerce Co., d/b/a LaMar Hotel, 140 NLRB 226, enfd
328 F .2d 600 (C A. 5, 1964), cert denied 379 U.S 817 ( 1964); Burnett
Construction Co.. 149 NLRB 1419, enfd 350 F 2d 57 (C.A. 10, 1965).
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO as the exclusive and duly certified
bargaining representative of its employees in the
following appropriate unit:
All employees, excluding tool pushers, drillers,
office clerical employees, technical employees,
guards, professional employees and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding 10 reached, embody such
understanding in a signed agreement.
(b) Post at its Roswell, New Mexico, plant, copies
of the attached notice marked "Appendix."5 Copies
of said notice, on forms provided by the Regional
Director for Region 28, shall, after being duly
-signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees- are customarily
posted. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify said Regional Director for Region 28,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act,•as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Local 826, International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representative of
all employees in the bargaining unit described below
with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
The bargaining unit is:
All employees, excluding tool pushers,, drillers, office
clerical employees, technical employees, guards,
professional employees and supervisors as defined in
the Act.
Dated By
WEK DRILLING CO., INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 7011 Federal
Building & U.S. Courthouse, 500 Gold Avenue, SW,
Albuquerque, New Mexico 87101, Telephone
505-247-2538.